AUL Legal Team: Why the Executive Order Does Not Prevent Taxpayer Funded Abortion

The White House’s proposed executive order to “deal” with the abortion problems in the Senate health care reform bill reveals that the President will not even attempt to ensure that there is no federal funding for abortion or mandates for abortion coverage in the bill.

The first section of the proposed executive order provides that that “it is necessary to establish an adequate enforcement mechanism” to prevent federal funding for abortions “consistent with . . . the Hyde amendment.” While this acknowledges that the Senate bill is not consistent with the Hyde amendment, the language of the executive order fails to describe accurately and to mirror the scope of the Hyde Amendment.

While the Hyde Amendment comprehensively prohibits the use of all federal funding that flows through Labor, Health and Human Services (LHHS) appropriations for both abortion and insurance plans that cover abortions, the Senate health care bill does not. The executive order does not remedy this problem. First, the executive order only addresses the insurance exchanges (section 2) and the Community Health Center (CHC) funding (section 3). In other words, the executive order still leaves open the possibility that other funds authorized or appropriated through the bill could be used to directly pay for abortions.

Second, while the executive order addresses the insurance exchanges, it utterly fails to apply Hyde to them. Section 2 of the order provides guidelines for “strict compliance” with the provisions in the bill that address how federal subsidies are handled in plans that cover abortions in the exchanges. However, these guidelines do nothing to prevent federal subsidies from going to plans that cover abortions, which directly violates federal principles embodied in the Hyde Amendment and other federal laws, including the Federal Employee Health Benefits Program (FEHBP).

Current law forbids federal dollars from going to insurance plans that cover abortions, regardless of whether or not the dollars directly pay for abortions. In contrast, all this section of the executive order accomplishes is strict compliance with the anti-life “abortion surcharge” provision in the bill, which segregates the portion of premiums that pays for abortions in plans that cover abortion from federal funds.

Section 3 addresses new funding for CHCs. As a recap, the Senate bill does not prohibit these new funds from being used to pay for abortions. While the executive order states that the Hyde Amendment and longstanding regulations currently prohibit the use of CHC funds for abortions, the Hyde Amendment is not applied to CHC funding by statutory law, but only by regulations from an administrative agency.

This section of the executive order states that the Hyde Amendment will apply to the new authorization and appropriation of CHC funds. While this section may effectively prohibit the use of CHC funds for abortions, a court could interpret the statutory language as requiring the use of the funds for abortions because there is no statutory prohibition, which courts have done in the past with other health care statutory language.

Also, the executive order is not permanent law, just as regulations are not permanent law. Either or both of these can be repealed by President Obama and his administration fairly easily.

Should this executive order remain in place, it does not even attempt to address the broad mandate authorities in the bill that could be used to require private insurance plans to cover abortions. For instance, the Mikulski amendment to the Senate bill allows an administrative agency to determine what is “preventive care.” If abortion is categorized as “preventive care,” private insurance plans will be required to cover abortions.

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